Friday, March 10, 2017

I get it. I understand that Yogi Berra is not a Plato or an Aristotle.
But we all know that there’s considerable wisdom – you might even say,
considerable philosophy – in many of Yogi’s famous sayings.

Here’s one of my favorite Yogisms: “When you come to a fork
in the road, take it.” This one has been in my mind of late, because the newly
constituted FCC, and the new Congress as well, shortly will be arriving at
forks in the road on the way towards reforming communications law and policy.
And they will be forced to choose which fork to take – the more free market, less
regulatory path or the more interventionist, more regulatory one.

I should hasten to add here that Ajit Pai, the new FCC
Chairman, already has demonstrated in his short tenure, commendably in my view,
his intent to lead the Commission down the less regulatory path. For example,
Chairman Pai promptly closed the staff’s investigation into various “free data”
offerings of Internet service providers that had been initiated by his predecessor.
There had been no real evidence that these popular programs harmed consumers,
only hypothesizing about conjectured harms unlikely to materialize in the
currently competitive market.

Another fork in the road already taken by the Pai Commission
involves the stay of the data security requirements in the privacy rules adopted
late last year under then-Chairman Tom Wheeler’s leadership. The FCC agreed
that the agency’s new data security requirements, without adequate justification,
imposed unique compliance burdens and costs on Internet service providers
beyond those imposed on other Internet market participants by the FTC. The Commission
determined it possesses adequate authority under Section 222 of the
Communications Act to prevent consumer harm, not to mention other federal and
state laws in place to protect consumers.

And Chairman Pai already has taken significant steps to
reform the Commission’s own processes, not least of which is the trial
regarding the public release of Commission draft agenda items at the time they
are circulated among the commissioners. This is a major step in the direction
of increasing transparency regarding the agency’s work. Commissioner Michael O’Rielly,
from the beginning of his tenure, has evidenced a keen interest in FCC process
reform, and along with Chairman Pai, he deserves much credit for pointing the
way.

Of course, it is not surprising that so early in Chairman
Pai’s tenure the Commission has yet to confront some major challenges that are
on the horizon.

Example:
Curtailing the overreach of Net Neutrality rules and eliminating the Title II
legal foundation of FCC’s order.

Example:
Curtailing outdated video service and device regulations fashioned two or more
decades ago in an arguably monopolistic environment that bear little or no
relationship to today’s competitive environment.

Example:
Making available sufficient spectrum to ensure that next-generation, advanced
5G wireless networks can be deployed on a timely basis.

Tackling these and other issues will not be easy for the
FCC, or, for that matter, for Congress to the extent it addresses them. To be
sure, there are significant philosophical differences regarding the proper
approach. Of course, good-faith attempts to bridge differences, whether partisan
or otherwise, are almost always worthwhile. Nevertheless, there will be forks in
the road…paths to be chosen.

Another Yogism comes to mind: “If you don’t know where you
are going, you might wind up someplace else.” In other words, when you reach
that fork in the road, as least when it comes to making policy, you don’t want just
to flip a coin. You want to know in which direction you are going. If you
don’t, you might wind up in the wrong place.

I have no doubt that Chairman Pai knows that, in order to
enhance consumer welfare, we need a “A New
Direction in Communications Policy,” one that involves “Less Regulation, More Investment and
Innovation.”

Okay, okay. Right about now perhaps you’ve figured out that this
piece is not only about the relationship between Yogi Berra’s deep philosophical
principles and communications policymaking – although surely it is. It’s also a
bit of a promo for our Ninth Annual Telecom Policy Conference this coming
Tuesday, March 14, at the National Press Club. The theme of the Conference is “A New Direction in Communications Policy: Less
Regulation, More Investment and Innovation.”

We’ll be discussing and debating the important
communications law and policy issues of the day, identifying the forks in the
road, the proper way forward, and how to avoid winding up in the wrong place.
The agenda for Tuesday’s conference is here.
I know you will agree we’ve got an excellent lineup of speakers, including the
aforementioned Chairman Pai in the traditional lunch Conversation. I welcome
your attendance, but if you haven’t already done so, you must register here
to attend.

PS – Finally, in keeping with the “new direction” theme, and
the Free State Foundations’ own free market, rule of law-orientation, my
colleague Seth and I already have published six papers since the beginning of
the year with new ideas for the new Commission’s consideration. We are confident
that, if adopted, they will lead to “less regulation, more investment and
innovation.” Here they are: